Delhi District Court
Manoj Kumar Sharma vs Pisto Devi W/O Late Jamuna Parsad on 8 July, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
DISTRICT & SESSIONS JUDGE/RENT CONTROL TRIBUNAL
(NORTH-EAST), KARKARDOOMA COURTS, DELHI
RCT 6/18
CNR No.DLNE01-001438-2018
MANOJ KUMAR SHARMA
S/O MAHENDER KUMAR SHARMA
R/O C-4/249, FIRST FLOOR
YAMUNA VIHAR
DELHI-110053
................. APPELLANT
V
JAMUNA PARSAD
(NOW DECEASED AND REPRESENTED THROUGH LEGAL HAIRS)
1. PISTO DEVI W/O LATE JAMUNA PARSAD
2. DEEPAK KUMAR S/O LATE JAMUNA PARSAD
3. RAJESH KUMAR S/O LATE JAMUNA PARSAD
4. LATE ARUN KUMAR S/O LATE JAMUNA PARSAD
THROUGH
i. JYOTI W/O LATE ARUN KUMAR
ii. ADITYA S/O LATE ARUN KUMAR
iii. ANANT S/O LATE ARUN KUMAR
5. JANKI D/O LATE JAMUNA PARSAD
6. KAMLESH D/O LATE JAMUNA PARSAD
7. KIRAN D/O LATE JAMUNA PARSAD
8. URMILA D/O LATE JAMUNA PARSAD
ALL R/O
HOUSE NO 11232, GALI NO 7
ROOP NAGAR
DELHI-110007
.....................RESPONDENTS
RCT 6/2018 MANOJ KUMAR SHARMA V JAMUNA PRASAD 1/18
INSTITUTION: 11.04.2018
ARGUMENT: 07.02.2020
JUDGMENT:08.07.2020 APPEAL UNDER SECTION 38 OF THE DELHI RENT CONTROL ACT,1958 AGAINST IMPUNGNED ORDER/JUDGMENT DATED 06.03.2018 PASSED BY SH. SUDHIR KUMAR SIROHI, ACJ/CCJ/ARC (SHAHDARA) IN EVICTION PETITION TITLED AS JAMUNA PARSAD V MANOJ KUMAR SHARMA BEARING NO E-231/2016 JUDGMENT
1. The Rent Control Act, 1958 (hereinafter referred to as "the Act") was enacted with object to protect the rights of tenants with security and to restrict right of the landlords to evict their tenants. A landlord cannot evict any tenant without any valid reason and has to make an application to the Controller for the recovery of the possession on the grounds available in the Act. Chapter III of the act deals with control over eviction of tenant. It provides that notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant. The proviso clause attached to section 14(1) of the Act provided that the rent controller may on an application made to him in the pre- scribed manner make an order for the recovery of possession of the premises on available grounds. Clause (a) of the proviso to section 14 of the Act provides a ground of eviction due to non-payment of rent. It reads as under:-
(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in section 106 of the Transfer of Property Act,1882.
RCT 6/2018 MANOJ KUMAR SHARMA V JAMUNA PRASAD 2/18 In order to prove case under section 14 (1) (a) of the Act following facts have to be proved:-
a. Relationship of landlord and tenant. b. Existence of arrears of rent legally recoverable on the date of service of notice of demand.
c. Service of notice of demand.
d. Tenant failed to pay or tender the entire legally recover- able arrears of rent within two months from date of ser- vice of demand notice.
2. Jamuna Parsad (hereinafter referred to as "the original respondent/landlord") filed an eviction petition under section 14(1) (a) of the Act against the appellant/tenant in respect of one room situated on first floor of the property bearing no C-4/249, First Floor, Yamuna Vihar, Delhi-110053 as shown in red colour in site plan annexed with the petition (hereinafter referred to as "tenanted premises"). The original respondent/landlord pleaded that he is owner of the property bearing no C-4/249, First Floor, Yamuna Vihar, Delhi-110053 (hereinafter referred to as "the property") by virtue of perpetual lease dated 10.02.1997. The original respondent/landlord let out the tenanted premises to the appellant/tenant on execution of rent agreement on 16.01.2012 for a period of one month with effect from 08.01.2012 to 08.02.2012 at monthly rent of Rs.2200/- excluding electricity and water charges to be paid on 7th day of each English Calendar Month. The appellant/tenant constructed one room, latrine and bathroom as shown in green colour in site plan annexed with the petition without consent and permission of the original respondent/landlord and as such violated terms and conditions of the rent agreement dated 08.01.2012. The appellant/tenant did not pay rent to the original respondent/landlord since creation of the tenancy. The original respondent/landlord served legal notices dated 25.04.2012 and 24.07.2012 on the appellant/tenant and called the appellant/tenant to pay arrears of rent at the rent of Rs.2200/- excluding electricity and water charges which the appellant/tenant did not pay. The original respondent/landlord being aggrieved filed present petition under section 14 (1) (a) of the Act for passing eviction order on ground of non- payment of rent in respect of tenanted premises against the appellant/tenant.
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3. The appellant/tenant filed written statement and contested the petition. The appellant/tenant in preliminary objections stated that the appellant/landlord is not a tenant under the original respondent/landlord rather the appellant/landlord was inducted as lawful tenant by Deepak Koli, son of the original respondent/landlord in respect of entire first floor at monthly rent of Rs.2200/- excluding electricity and water charges as per oral agreement for a period of three years i.e. up to 12.12.2014. The appellant/tenant paid Rs.1,00,000/- as security and also spend about Rs.1,20,000/- on the renovation of first floor with permission of Deepak Soni and said amount was to be refunded at the time of vacating first floor. The appellant/tenant is paying monthly rent without delay to Deepak Koli. The appellant/tenant on reply on merits denied other allegations of the appellant.
4. The original respondent/landlord examined him as PW1, Deepak Koli as PW2 and Dinesh Kumar as PW3 who tendered respective affidavit which are Ex. PW1/A, Ex.PW2/A and Ex.PW3A. The original respondent/landlord as PW1 relied on documents which are Ex.PW1/1 to Ex.PW1/6. The evidence of original respondent/landlord was ordered to be closed vide order dated 28.10.2013.
The appellant/tenant examined him as RW1 and tendered affidavit which is Ex.RW1/A.
5. The trial court vide order dated 07.05.2013 directed the appellant/tenant to deposit arrears of rent at the rate of Rs.2200/- per month from date of institution of present eviction petition till date of order within one month and further continue to deposit rent at the rate of Rs.2200/- per month by 7th day of succeeding month. The appellant/tenant did not pay rent in terms of order dated 07.05.2013 and accordingly the defence of the appellant/tenant was ordered to be struck of vide order dated 18.01.2017.
6. The trial court vide judgment dated 06.03.2018 (hereinafter referred as 'the impugned judgment") passed an eviction order in favour of the original respondent/landlord and against the appellant/tenant in respect of tenanted premises as shown in red colour in site plan Ex PW1/2 along with one room, latrine and bathroom situated at first floor of the property as shown in green colour in site plan Ex. PW1/2.
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7. The appellant/tenant being aggrieved filed present appeal and challenged impugned judgment on grounds that impugned judgment is based on conjectures and surmises and is passed in mechanical manner without application of judicial mind. The impugned judgment is passed without appreciating evidence and other material on record. The original respondent/landlord could not prove relationship of landlord and tenant between the contesting the parties as the appellant/tenant disputed rent agreement but the trial court considered rent agreement as genuine document which is bearing forged signature of the appellant/tenant. The trial court acted like a civil court. The appellant/tenant also raised other grounds and prayed that the appeal be accepted and impugned judgment be set aside. .
8. The original respondent/landlord died during pendency of appeal and his legal heirs were allowed to represent the original respondent/landlord vide order dated 08.07.2020.
9. Sh. Sanjay Bahuguna, Advocate for the appellant/tenant and Sh. J.P.Mishra, Advocate for substituted respondents heard. The counsels for the appellant/tenant and substituted respondents also file written arguments which are considered. Record perused.
10. The perusal of impugned judgment reflects that the trial court primarily considered the facts that the original respondent/landlord could prove relationship of landlord and tenant in view of testimonies of PW1, PW2 and PW3. There were legally recoverable arrears of rent on date of notice. The demand notice was duly served on the appellant/tenant. The appellant/tenant despite notice failed to pay or tender legally recoverable arrears of rent within two months from date of service of demand notice.
11. The burden was on the original respondent/landlord to prove that there was relationship of landlord and tenant between the original respondent/landlord and the appellant/tenant. There were arrears of rent legally recoverable on the date of service of notice of demand and the appellant/tenant failed to pay or tender the entire legally recoverable arrears of rent within two months from date of service of demand notice. A burden of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims against the defendant RCT 6/2018 MANOJ KUMAR SHARMA V JAMUNA PRASAD 5/18 and is based on preponderance of the probabilities. Under Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another, VI (2003)SLT307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues. This view was also accepted in M/S. Gian Chand & Brothers and Another V Rattan Lal @ Rattan Singh, (2013) SCR 601.
12. The counsel for the appellant/tenant argued that the trial court wrongly presumed existence of relationship of landlord and tenant only on basis of rent agreement Ex.PW1/1 which is a forged and fabricated document. The counsel for the appellant/tenant pointed out discrepancies in cross examination of PW1, PW2 and PW3. The counsel for the original respondent/landlord argued that the trial court rightly decided existence of relationship of landlord and tenant between the original respondent/landlord and appellant/tenant.
RCT 6/2018 MANOJ KUMAR SHARMA V JAMUNA PRASAD 6/18
13. The relationship of landlord and tenant is an association between two individuals arising from an agreement by which one individual occupies the other's property with permission subject to a rental fee. The landlord refers to a person who owns property and allows another person to use it for a fee. The person using the property is called a tenant. The agreement between a landlord and a tenant is usually called a lease or rental agreement. The relationship of landlord and tenant came into existence if the property owner consents to occupancy of the premises, the tenant acknowledges that the owner has title to the property, the tenant receives a limited right to use the premises, the owner transfers possession and control of the premises to the tenant and a contract to rent exists between the parties. The landlord and tenant law may apply even in the absence of a written and signed rental agreement between the owner of the property and the person living on the property. The court considers various factors to determine relationship of landlord and tenant including the owner's consent to occupancy of the property, the length of the occupancy, and the exchange of monies. The judicial finding about relationship of landlord and tenant is significant because the law places duties on both parties in such a relationship.
14. Lease is a transfer of an interest in the property for a stipulated period of time without transferring the ownership of that property. In a lease, right of possession is transferred instead of the right of ownership. Lease is governed by the Section 105 of the Transfer of Property Act, 1882. Section 105 reads as under:-
105. Lease defined.--A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined.--The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.
Section 105 states the definition of a lease which states that it is a RCT 6/2018 MANOJ KUMAR SHARMA V JAMUNA PRASAD 7/18 transfer of immovable property for a particular time period for a consideration of which the transferee has accepted the terms surrounding the agreement. The essentials of a lease the parties must be competent to enter into a contract. In lease ownership rights are not transferred in a lease and only the possession of the property is transferred. There should be consideration for a lease in the form of a rent or premium. There should be acceptance of lease agreement by lessee. Lease is always created for a particular time period. It is essential to the creation of a tenancy that the tenant be granted the right to the enjoyment of the property and grant should be for consideration.
15. The original respondent/landlord regarding relationship of the landlord and tenant pleaded in petition and deposed in affidavit Ex.PW1/A that the original respondent/landlord let out the tenanted premises as shown in red colour in site plan Ex.PW1/2 to the appellant/tenant on execution of rent agreement Ex.PW1/1 on 16.01.2012 for a period of one month with effect from 08.01.2012 to 08.02.2012 at monthly rent of Rs.2200/- excluding electricity and water charges to be paid on 7th day of each English Calendar Month. The original respondent/landlord to corroborate his testimony examined son Deepak Koli as PW2 and Dinesh Kumar as PW3 who in their respective affidavits Ex.PW2/A and Ex.PW3/A also deposed these facts besides deposing that they signed rent agreement Ex.PW1/1. The original respondent/landlord in cross examination could not tell when tenanted premises were let out to the appellant/tenant and rent agreement Ex.PW1/1 was executed. The rent agreement Ex.PW1/1 was typed in his presence and was signed by PW2 Deepak Koli. The original respondent/landlord PW1 could not tell name of notary public who attested rent agreement Ex.PW1/1. The original respondent/landlord PW1 denied suggestion that his son Deepak Koli PW2 rented the tenanted premises to the appellant/tenant for a period of three years. PW2 Deepak Koli in cross examination deposed that he and PW3 Dinesh Kumar signed rent agreement Ex.PW1/1 as witnesses. The rent agreement Ex.PW1/1 was prepared and executed on 08.01.2012 and stamp paper was purchased on 07.01.2012. The rent agreement Ex.PW1/1 was attested by notary. PW2 Deepak Koli denied suggestion that no rent agreement was executed RCT 6/2018 MANOJ KUMAR SHARMA V JAMUNA PRASAD 8/18 and signature of the appellant/tenant is forged on rent agreement or that tenanted premises were let out by PW2 Deepak Koli. PW3 Dinesh Kumar in cross examination deposed that rent agreement was not prepared in his presence but was put before him for reading. None else except PW3 Dinesh Kumar signed rent agreement Ex.PW1/1 as witness. PW3 Dinesh Kumar denied suggestions no rent agreement was executed in his presence or that he did not sign rent agreement as witness.
The appellant/tenant alleged that he is not a tenant under the original respondent/landlord rather the appellant/landlord was inducted as lawful tenant by Deepak Koli, son of the original respondent/landlord in respect of entire first floor at monthly rent of Rs.2200/- excluding electricity and water charges as per oral agreement for a period of three years i.e. up to 12.12.2014. The appellant/tenant tendered affidavit Ex.RW1/A in evidence but the defence of the appellant/tenant was struck of vide order dated 18.01.2017.
16. The original respondent/landlord was granted lease of plot bearing C-4/249 vide perpetual lease dated 10.02.1977 and thereafter was also granted occupancy certificate dated 12.10.1982. The rent agreement Ex.PW1/1 is perused. The perusal of rent agreement Ex.PW1/1 reflects that it was executed on 16.01.2012 between the original respondent/landlord and the appellant/tenant for creation of tenancy in respect of tenancy premises in favour of the appellant/tenant at monthly rent of Rs.2200/- for a period with effect from 08.01.2012 to 08.02.2012 and PW3 Dinesh Kumar signed as a witness. PW2 Deepak Soni and PW3 Dinesh Kumar in their respective testimony deposed about execution of rent agreement Ex.PW1/1 in their presence. The variations as pointed out by the counsel for the appellant/tenant in written arguments in respective testimony of PW1, PW2 and PW3 do not invalidate rent agreement Ex.PW1/1 as these variations/discrepancies are minor and not much significant. PW2 Deepak koli himself deposed that his father i.e. the original respondent/landlord is the landlord of the property. There is nothing in evidence led by the original respondent/landlord that rent agreement Ex.PW1/1 is forged and fabricated document and signature of the appellant/tenant is forged on rent agreement Ex.PW1/1. There is no evidence to prove that the appellant/tenant RCT 6/2018 MANOJ KUMAR SHARMA V JAMUNA PRASAD 9/18 was inducted as a tenant in respect of tenanted premises by Deepak Koli, son of the original respondent/landlord.
17. The counsel for the argued that the appellant/tenant disputed relationship of landlord and tenant as such the trial court should not have passed eviction order rather it lies within jurisdiction of civil court to determine relationship of landlord and tenant between the appellant/tenant and the original respondent/landlord. The appellant/tenant alleged that he was inducted as a tenant by Deepak Koli, son of the original respondent/landlord and as such there is relationship of landlord and tenant between Deepak Koli and the appellant/tenant.
The superior courts considered judicial competence of rent controller to decide relationship of landlord and tenant once the tenant denied or disputed relationship of landlord and tenant. The Andhra Pradesh High Court in Bibijan V M/s Chintakridi Narasimham and Sons, 1997(2) RCR 627 held that where the tenant denied the title of landlord and the rent controller found that the denial was bona fide then the rent controller would not have jurisdiction rather the civil court would have the jurisdiction. The Andhra Pradesh High Court in Kilambi Vijayalakshmi V M.V. Seetha Devi (died) per LRs, 1998(1) RCR 84 held that where the tenant raised dispute as to the title of the landlord, the rent controller had no jurisdiction to decide whether the landlord had title to the property or not. The Rent Controller has to decide whether the denial or the claim by the tenant is bona fide or not. There cannot be finality to any decision on title that may be given by the rent controller, because he can decide only incidentally and not finally. In Maj. Parkash Gupta V Sat Parkash Arora of Chandigarh, 1985(1) RCR 536 (P&H) the tenant specifically denied the ownership of the landlord and was paying rent to another person from the very inception of the tenancy. The Punjab & Haryana High Court held that the onus to prove relationship of landlord and tenant is on the landlord who moved the application for ejectment. In Inder Lal V Babu Lal, 1998(1) RCR 590, it was held that the rent controller has no jurisdiction to decide the question of title.
18. The Punjab & Haryana High Court in Balbhadar and ors. V Hindi Sahitya Sadan (Registered Body), Mandi Dabwali, 1980(1) RCR 80 held that in a case RCT 6/2018 MANOJ KUMAR SHARMA V JAMUNA PRASAD 10/18 of dispute over the relationship of landlord and tenant, the rent controller had jurisdiction to decide the issue of relationship in ejectment proceedings. The decision of Rent Controller may not operate as res judicata in a regular civil Court. In Tilak Raj V Shrimati Kailash Wati and another, 1991(1) PLR313 a similar view was taken. The Kerela High Court in Parthakumar V Ajith Viswanathan, 2006 (2) KLT 250 observed as under:-
The landlord claiming eviction must have title to evict. If he has no title to evict and such a contention is raised, the jurisdiction to decide that dispute rightly vests in civil courts following exhaustive procedure and not in the Special Tribunals constituted to decide a limited category of disputes following summary procedure. Therefore where existence of landlord - tenant relationship, i.e., title of the landlord to claim eviction against the person proceeded against, is itself seriously disputed, certainly the Special Tribunals must take their hands off the dispute and leave the parties to resolve their disputes before the regular civil courts constituted. The Tribunals following summary procedures cannot usurp the powers and jurisdiction of the civil courts to decide such disputes regarding title. Such substantial disputes regarding title are uplands and out of bounds for the statutory special tribunals. That is the zone or area where the civil court must entertain jurisdiction.
The Supreme Court in Om Parkash Gupta V Dr. Rattan Singh & another, 1963 P.L.R. 543 held that where the relationship of landlord and tenant is denied, the authorities under the Delhi Rent Control Act had to determine this question as a simple denial of the relationship cannot oust the jurisdiction of the tribunals under the Act. Although tribunals are of limited jurisdiction and scope of their power and authority is limited by the statute. However a simple denial of relationship either by the alleged landlord or by the alleged tenant would not have the effect of ousting the jurisdiction of the authorities under the Act. In East India Corporation Ltd. V Shree Meenakshi Mills Ltd., AIR 1991 SC 1894 it was observed that where the tenant denied the title of the landlord, the controller should on such denial reach a decision whether such denial or claim is bona fide.
19. The Supreme Court in LIC V India Automobiles & Co., 1990 (4) SCC 286 RCT 6/2018 MANOJ KUMAR SHARMA V JAMUNA PRASAD 11/18 observed that in a suit for eviction between the landlord and tenant, the court will take only a prime facie decision on the collateral issue as to whether the applicant was landlord. If the court finds existence of relationship of landlord and tenant between the parties it will have to pass a decree in accordance with law. The court has to satisfy itself that the person seeking eviction is a landlord, who has prima facie right to receive the rent of the property in question. In order to decide whether denial of landlord's title by the tenant is bona fide the Court may have to go into tenant intention on the issue and the Court is not to decide the question of title finally as the Court has to see whether the tenant's denial of title of the landlord is bona fide in the circumstances of the case. The Supreme Court of India in Dr. Ranbir Singh V Asharfi Lal, 1995 SCC (6) 580 observed as under:-
It is well settled law that the question of title of the property is not germane for decision of the eviction suit. In a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of the landlord and tenant, the scope of the suit is very much limited in which a question of title cannot be gone into because the suit of the plaintiff would be dismissed even if he succeeds in proving his title but fails to establish the privity of contract of tenancy. In a suit for eviction based on such relationship the Court has only to decide whether the defendant is the tenant of the plaintiff or not, though the question of title is disputed, may incidentally be gone into, in connection with the primary question for determining the main question about the relationship between the litigating parties.
20. The existence of relationship of landlord and tenant between the contesting parties in an eviction petition is condition precedent for invoking jurisdiction of rent controller under Delhi Rent Control Act, 1958. In present eviction petition the question of relationship of landlord and tenant between the original respondent/landlord and the appellant/tenant does not involve basic question of title in respect of the tenanted premises. The original respondent/landlord was granted perpetual lease and occupancy certificate in respect of the property. The tenancy in favour of the appellant/tenant is outcome of the rent agreement Ex.PW1/1. The dispute regarding relationship of landlord and tenant as raised by the appellant/tenant is not bona fide and is supported by suitable evidence RCT 6/2018 MANOJ KUMAR SHARMA V JAMUNA PRASAD 12/18 including documentary evidence. The defence put forward by the appellant/tenant regarding relationship of landlord and tenant assumed significance is a simple denial and does not require adjudication by a civil Court. The original respondent/landlord duly proved existence of relationship of landlord and tenant between him and the appellant/tenant. The appellant/tenant could not prove that he was inducted as a tenant by Deepak Koli. The trial court rightly and judiciously decided existence of relationship of landlord and tenant between the original respondent/landlord and the appellant/tenant.
21. The original respondent/landlord regarding arrears of rent on date of service of demand notice Ex. PW1/3 pleaded and deposed in affidavit Ex.PW1/A that the appellant/tenant did not pay rent since creation of tenancy. The appellant/tenant alleged that he paid rent to Deepak Koli who was his landlord in respect of tenancy premises. The rate of rent is not disputed which is Rs.2200/ per month excluding electricity and water charges. The appellant/tenant stated about payment of rent on monthly basis without specifying details of payment of rent even to Deepak Koli. The appellant/tenant did not cross examine either the original respondent/landlord or PW2 Deepak Koli that the appellant/tenant has actually paid rent on monthly basis either to the original respondent/landlord. The purposes of cross examination are to expose the truth about the testimony of the witness and to destroy the testimony and/or the credibility of the opponent's witnesses. Cross-examination is the right of the party against whom the witness is called and the right is a valuable one as a means of separating hearsay from knowledge, error from truth, opinion from fact, and inference from recollection and as a means of ascertaining the order of the events as narrated by the witness in his examination in chief. The cross examination is not merely a technical rule of evidence but it is a rule of essential justice as it serves to prevent surprise at trial and miscarriage of justice. It was observed in A.E.G. Carapiet V A. Y. Derderian, AIR1961Cal.359 that whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in the cross examination, it must follow that he believed that the testimony given, could not be disputed at all. The Supreme Court in M.B Ramesh RCT 6/2018 MANOJ KUMAR SHARMA V JAMUNA PRASAD 13/18 V K.M Veeraje, 2013 (2) RCR Civil 932 also took similar view. The original respondent/landlord proved that he created tenancy in favour of the appellant/tenant in respect of tenanted premises on execution of rent agreement Ex.PW1/1. The appellant/tenant was in arrears of rent on date of service of demand notice Ex.PW1/1.
22. The landlord to invoke provision of Section 14 (1) (a) of the Act clearly the landlord has to serve the legal notice demanding of arrears of rent. The tenant should be in arrears of rent on the date of notice. The original respondent/landlord pleaded and deposed in affidavit Ex.PW1/A that he sent a legal notice dated 25.04.2012 Ex.PW1/3 through registered AD receipt of which is Ex.PW1/4 but the appellant/tenant despite service of notice Ex. PW1/3 did not pay arrears of rent. The original respondent/landlord also sent another notice cum reminder dated 24.07.2012Ex.PW1/5 but the appellant/tenant did not pay arrears of rent to the original respondent/landlord. The appellant/tenant simply denied service of notices Ex.PW1/3 and Ex.PW1/5. The original respondent/landlord in cross examination could not tell how many demand notices were sent to the appellant/tenant as notices were sent through counsel. The original respondent/landlord denied suggestion that no legal notice was served on the appellant/tenant.
23. The counsel for the appellant/tenant argued that the original respondent/landlord served second legal notice dated 24.07.2012 Ex.PW1/5 and filed the present petition on 14.08.2012 which reflects that the present eviction petition is pre-mature as filed within two months from date of second demand notice dated 24.07.2012 Ex.PW1/5. The counsel relied on Anand Parkash & others V Gian Chand Swara & others, 48(1992)DLT270 wherein it was held that reading of the provisions of Section 14 of the Delhi Rent Control Act. 1958 clearly goes to show that in order to take benefits of the aforesaid section, two months clear lime has to be given to the tenants to pay the arrears and if the tenant fails to pay the arrears within two months, only then the landlord gets a ground to seek eviction of the tenant for non-payment of rent.
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24. Section 27 of the General clauses Act deals with service by post. It reads as un- der:-
Section-27--Meaning of service by post--where any central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
The Supreme Court in K. Bhaskaran V sankaran vaidhyan Balan, AIR 1999 SC 3762, the supreme court observed as under :-
The principle incorporated in section 27 can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service.
25. The demand notice dated 25.04.2012 Ex.PW1/3 is correctly addressed and sent through registered post as reflected from postal receipt Ex.PW1/4. The demand notice dated 25.04.2012 Ex.PW1/3 must have been received by the appellant/tenant. The appellant/tenant did not specifically disputed service of demand notice dated 25.04.2012 Ex.PW1/3. The original respondent/tenant proved that demand notice dated 25.04.2012 Ex.PW1/3 was served on the appellant/tenant. The demand notice is not bad in law in any manner. The argument advanced by the counsel for the appellant/tenant that the present petition is pre-mature is without any basis as cause of action for filing present eviction petition was arose from service of first notice dated 25.04.2012 Ex.PW1/3. The subsequent notice dated 24.07.2012 did not give cause of action for filing the present eviction petition as notice dated 24.07.2012 was just a reminder/extension of notice dated 25.04.2012 Ex.PW1/3. Mere issuance of notice dated 24.07.2012 Ex.PW1/5 does not invalidate and makes notice dated 25.04.2012 Ex.PW1/3 RCT 6/2018 MANOJ KUMAR SHARMA V JAMUNA PRASAD 15/18 nonoperational or without any legal force. The notice dated 24.07.2012 Ex.PW1/5 does not extinguish legal force of demand notice dated 25.04.2012 Ex.PW1/3. The original respondent/landlord was justified in filing present petition on basis of notice dated 25.04.2012 Ex.PW1/3. The trial court was justified and rightly held that notice dated 25.04.2012 Ex.PW1/3 was duly served on the appellant/tenant.
26. The Supreme Court in Prakash Mehra V K.l.Malhotra, (1989)3SCC74 observed that the arrears of rent envisaged by section 14 (1) (a) of the Act are the arrears demanded by the notice for payment of arrears of rent. The Supreme Court in Harbans Kaur V Iqbal Singh & another, Civil Appeal No 1256112562 / 2017 also reiterated same view. The original respondent/landlord in demand notice dated 25.04.2012 Ex.PW1/3 demanded arrears of rent for period with effect from January, 2012 to April, 2012 at rate of Rs.2200/- per month excluding electricity and water charges amounting to Rs.8800/- within two months from receipt of legal notice. The appellant alleged his tenancy in respect of entire first floor of the property including tenancy premises as shown in red colour in site plan Ex.PW1/1. The appellant/tenant only alleged that he was paying monthly rent to Deepak Koli but without any specification and detail. The appellant/tenant was a tenant in respect of tenanted premised under original respondent/landlord and now under his legal heirs. There is no evidence that the appellant/tenant after receipt of demand notice Ex.PW1/1 paid or tendered arrears of rent as mentioned in demand notice Ex.PW1/1 either to the original respondent/landlord or Deepak Koli. The Supreme Court in Sarla Goel V Kishan Chand, (2009) 7 SCC 658 also observed that a demand notice under Section 14(1) (a) of the DRC Act does not stand satisfied on mere tender of rent to the landlord, and that it is incumbent upon the tenant in case of refusal of receipt of rent by the landlord, for satisfying the demand notice to deposit the rent which is claimed in the demand notice under section 27 of the Act. In the present case even the appellant/tenant did not deposit rent under section 27 of the Act if there was a bona fide doubt as to the person to whom the rent is payable. The original respondent/landlord proved that the appellant/tenant neither tendered nor paid arrears of rent in terms of demand notice dated 25.04.2012 Ex.PW1/3 to the original respondent/landlord.
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27. The counsel for the appellant/tenant argued that the trial court has not considered submissions and arguments advanced by the appellant/tenant on ground that the defence of the appellant/tenant was struck of and relied on Modula India V Kamakshya Singh Deo, Civil Appeal No 193/83 decided on 27th September, 1988 wherein it was observed that tenant is still to cross examine plaintiff's witnesses and address arguments on plaintiff's case. The appellant/tenant cross examined witnesses examined by the original respondent/landlord and advanced arguments before trial court on merits. There is no force in arguments advanced by the counsel for the appellant/tenant. The counsel for the appellant/tenant further argued that the trial court also passed eviction order in respect of one room, latrine and bathroom as shown in green colour in site plan Ex.PW1/2 which were constructed by the appellant/tenant out of his funds. The trial court vide impugned judgment passed an eviction order in favour of the original respondent/landlord and against the appellant/tenant in respect of tenanted premises as shown in red colour in site plan Ex PW1/2 along with one room, latrine and bathroom situated at first floor of the property as shown in green colour in site plan Ex. PW1/2. The appellant/tenant himself mentioned that he is tenant in respect of entire first floor of the property. Once the appellant/tenant himself claimed a tenant in respect of entire first floor of the property then the appellant/tenant cannot be allowed to raise objection against final verdict given by the trial court. If the appellant paid Rs.1,00,000/- as security and spend Rs. 1,20,000/- on renovation of first floor of the property then it is open for the appellant/tenant to initiate appropriate legal proceedings for recovery of said amount but said amount cannot be adjusted towards rent in absence of specific agreement.
28. The trial court considered all relevant issues at the time of passing of impugned judgment and passed a well-reasoned judgment. There is no infirmity or illegality in the impugned judgment. There is no merit in appeal. The appellant/tenant did not raise any substantial ground in appeal enough to challenge impugned demand and as such the impugned judgment does not call any interference. The appellant/respondent despite direction of the trial court did not pay rent in terms of order dated 07.05.2013 as per section 15(1) of the Act and accordingly the defence RCT 6/2018 MANOJ KUMAR SHARMA V JAMUNA PRASAD 17/18 of the appellant/tenant was struck of vide order dated 18.01.2017 as per section 15(7) of the Act. The appellant is not entitled for benefit under section 14(2) of the Act.
The appellant did not obey direction of the court by paying or depositing rent to the original respondent/landlord but seeking protection of law. The litigation like present appeal is causing institutional strain on justice delivery system and judicial process. Hence appeal is dismissed with cost of Rs.10,000/-. TCR be send back to concerned court. Copy of this judgment be send to the trial court for information. Appeal file be consigned to Record Room.
Digitally signed byANNOUNCED IN THE Sudhir Sudhir Kumar Jain
Location:
COURT ON 08th JULY, 2020 Kumar Karkardooma
courts, Delhi
Jain Date: 2020.07.08
15:38:32 +0530
(DR. SUDHIR KUMAR JAIN)
ISTRICT AND SESSIONS JUDGE/RENT CONTROL TRIBUNAL
NORTH-EAST
KARKARDOOMA COURTS, DELHI
RCT 6/2018 MANOJ KUMAR SHARMA V JAMUNA PRASAD 18/18